It was a controversial decision, but the state appeals court made the decision to allow the change Florida made to their medical-malpractice laws to stand. As a result of the ruling, individuals who file a medical malpractice lawsuit in Florida need to be aware that in doing so, they’ll be waiving some of the privacy rights used to be in place.
The reason the case found itself in the 1st District Court of Appeals was a piece of Republican-controlled legislation that became law in 2013. Since than personal injury lawyers and medical malpractice defense attorneys have been arguing back and forth about whether or not the law forces patients who feel they’ve been victimized by the medical profession to reveal medical information that they’d prefer remain private.
Last year a separate case regarding the same laws made its way to the Federal appeals court where the changes were also upheld.
While the majority of health care providers aim to exercise the highest standard of care for all patents, there are times when things can go gravely wrong.
The bulk of the arguments regarding the changes in the previous Florida medical malpractice laws involves “ex parte communications,” which forces patients who aren’t happy with the medical treatment they received to sign a form allowing these types of conversations to take place. If the form doesn’t get signed, the patient won’t be able to file the lawsuit.
Once the ex parte communications waiver has been signed, it becomes possible for the defense attorney who represents the defense during these types of cases to gain information about the plaintiff from other doctor’s or medical facilities. These records could be read even without the plaintiff’s personal injury lawyer being present.
“It is well-established in Florida and across the country that any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim,” Judge James Wolf wrote when he explained the Court’s ruling. “Thus, by filing the medical malpractice lawsuit, the decedent’s medical condition is at issue.”
There are many who feel that by forcing patients to sign the ex parte communications before they can file a medical malpractice case in civil court is a direct violation of the plaintiff’s constitutional separation of powers. The judges sitting on the 1st District Court of Appeals didn’t agree. They stated that they felt it represented an “integral to the substantive pre-suit notice statute” in medical-malpractice cases.
Attorney Joe and Martin of South Carolina isn’t happy with the way things turned out. “I have to be honest. I hoped this wouldn’t be the way Court of Appeals ruled. I think that knowing some of their medical files will be able to be viewed by the defense will cause some people to decide not to file a medical malpractice lawsuit, even if they’re entitled to a settlement. Personal injury attorneys are now going to have to be very clear about how the availability of the medical records will affect the case as well as exactly what type of medical records can and can’t be accessed during a medical malpractice civil case.”